Interim Decision #2825
MATTER OF BADER
In Deportation Proceedings
A-20871E32
Decided by Board September 24, 1980
(1) Denial of a request for change of venue to permit presentation of expert witness
testimony not error where there has been no showing of prejudice by affidavit or offer
of proof to establish the witness' identity, qualifications, and proposed testimony.
(2) A foreign document to be admissible requires both a certification by a foreign official
having legal custody of the document, as to its accuracy, and a certification by a United
States Foreign Service officer stationed in the foreign country, as to the genuineness of
the signature and official position of the certifying foreign official. See 8 C.F.R. 287.6.
(3) Failure to certify a foreign record of conviction under 8 C.F.R. 287.6 will not require
setting aside the immigration judge's finding that alien was convicted where the alien
has not repudiated his sworn admissions that he was so convicted nor challenged the
accuracy of the facts contained in the foreign record of conviction.
(4) Prejudgment by the immigration judge is not established absent a showing that the
alien was refused the opportunity to present evidence or that the immigration judge
declined to consider the evidence presented.
(5) A conviction to defraud the public of money or valuable security under section 338(1)
of the Canadian Criminal Code, which requires proof of intent to defraud as a
necessary element of the offense, is a crime involving moral turpitude.
(6) A conspiracy to commit an offense involves moral turpitude when the underlying
substantive offense is a crime involving moral turpitude.
(7) Alien's conviction of conspiracy to commit a crime involving moral turpitude established deportability under section 241(a)(1) of the Immigration and Nationality Act, 8
U.S.C. 1251(a)(1), as alien excludable at time of entry under section 212(a)(9) of the
Immigration and Nationality Act, 8 U.S.C. 1182(a)(9).
CHARGE:
Order Act of 1952—Sec. 241(a)(1) [8 U.S.C.. 1251(a)(1)j—Excludable at entry under
sec. 212(a)(9)—Corwicted of a crime involving moral
turpitude
(IN BEHALF OF RESPONDENT: Ira J. Kursban.. Esquire
444 Brickell Avenue, Suite 1011
Miami, Florida 33131
Br Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members
Egg
Interim Decision #2825
dred dollars; or (b) is guilty
(i) of an indictable offence and is liable to imprisonment for two
years, or
(ii) of an offence punishable on summary conviction, where the
value of the property, of which the public or any person is
defrauded does not exceed two hundred dollars. 1974 75-76, c. 93,
s. 32.
(2) Every one who, by deceit, falsehood or other fraudulent
means, whether or not it is a false pretence within the meaning of
this Act, with intent to defraud, affects the public market price of
stocks, shares, merchandise or anything that is offered for sale to
the public, is guilty of an indictable offence and is liable to imprisonment for ten years- 1953-54, c. 51, s. 323.
The immigration judge found the respondent's conviction was for a
crime involving moral turpitude. Respondent argues that a conviction
under section 338(1) does not necessarily require proof of criminal
intent or intent to defraud and is therefore not a crime involving moral
turpitude. He points to the language of section 338(1), not requiring
"false pretence" as a necessary element of the offence, and the inclusion of "intent to defraud" as a necessary element in sections 338(2)
and 319(1) (the crime of false pretence)* to support his position. He also
cites several Canadian judicial decisions, suggesting that they demonstrate criminal intent or intent to defraud is not required for a conviction under section 338(1).
Fraud has, as a general rule, been held to involve moral turpitude,
Jordan v. DeGeorge, 341 U.S. 223 (1951)(defrauding the United States
of taxes on distilled spirits); Mercer v.. Lence,
96 F.2d 122 (10 Cir.
1938)(defrauding a person of a large sum of money); US. ex rel.
Berkandi v. Reimer,
30 F.Supp. 767 (S.D.N.Y. 1939), ard,
113 F.2d 429
(2 Cir. 1940) (defrauding the United States of taxes on distilled spirits);
U.S. ex rel. Amato v. Commissioner of Immigration, Ellis Island, New
York Harbor,
18 F.Supp. 480 (S.D.N.Y. 1937) (petty larceny); U.S. ex rel.
Portada v. Day,
16 F.2d 328 (S.D.N.Y. 1926) (issuing of checks without
sufficient funds, with intent to defraud); Ponzi v. Ward, 7 F_Supp 736
(D. Mass. 1934) (use of the mails to defraud); Matter ofFlores, Interim
Decision 2752 (BIA 1980) (uttering and selling false or counterfeit
paper relating to registry of aliens); Matter of McNaughton,
16 I&N
Dec. 569 (BIA 1978) (fraudulently affecting public market price of
Section 319(1) provides in relevant part
819. (1) A false pretence is a representation of a matter of fact either present or past,
made by words or otherwise, that is known by the person who makes it to be false and
that is made with a fraudulent intent to induce the person to whom it is made to act
upon it. 1953-54, c. 51, s. 303.
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Interim Decision #2825
stocks); Matter of Martinez, I&N Dec. 336 (BIA 1977) (passing
counterfeit money); Matter of P—, 3 I&N Dec. 56 (CO 1947; BIA 1948)
(obtaining money by false pretenses); Matter of F—,
2 I&N Dec. 754
(CO 1946; BIA 1947) (defrauding the government of customs duties).
From these cases it can be seen that whenever a crime has involved
intent to defraud, it has been found to involve moral turpitude. The
Court in DeGeorge, supra, stated:
In view of these decisions, it can be concluded that fraud has consistently been
regarded as such a contaminating component in any crime that American courts have,
without exception, included such crimes within the scope of moral turpitude.
841 U.S. at 229.
Whatever else the phrase "crime involving moral turpitude" may mean in peripheral
cases, the decided cases make it plain that crimes in which fraud was an ingredient
have always been regarded as involving moral turpitude.... Fraud is the touchstone
by which this case should be judged. The phrase "crime involving moral turpitude"
has without exception been construed to embrance fraudulent conduct
341 U.S. at 232.
Intent to defraud is a required element to obtain a conviction under
section 338(1). Regina v. Zaritec Industries Ltd. And 3 Others, 24
C.C.C.(2d) 180 (Alberta Supreme Court 1975). The term "defraud"
means deliberate dishonest acts resulting in the deprivation or loss of
another's proprietary right. Regina v. Olan, Hudson and Hartnett, 41
C.C.C.(2d) 145 (Supreme Court of Canada 1978).
The respondent was convicted of a conspiracy (section 423(1)(d)) to
defraud the public (section 338(1)). A conspiracy to commit an offense
involves moral turpitude when the underlying substantive offense is a
crime involving moral turpitude. See Jordan v. DeGeorge, supra; Matter of Flores, supra; Matter of McNaughtcra, supra; Matter of M , 8 —
I&N Dec. 535 (BIA 1960); Matter of C—,
7 I&N Dec. 114 (BIA 1956);
Matter of S ,
2 I&N Dec. 225 (BIA 1944).
—
We conclude that a conviction under section 338(1) is for a crime
involving moral turpitude and that respondent's conviction for conspiracy to violate section 338(1) involves a crime of moral turpitude
under the above authority. We further conclude that respondent's
deportability under section 241(a)(1) of the Act has been established
by clear, convincing, and unequivocal evidence.
The decision of the immigration judge was correct. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.
Roo
Interim Decision #2826
MATTER OF APHRODITE INVESTMENTS LIMITED
In Visa Petition Proceedings
PHO-N-2277
Decided by Commissioner August 22, 1980
A corporation is a separate entity from its stockholders for the purposes of qualifying an
alien beneficiary as an intra-company transferee under section 101(a)(15)(L) of the
Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L). Cf. Matter of M—, 8 I&N
Dec. 24 (BIA 1958; A.G. 1958).
ON BEHALF or PkTITIONER: Michael Margrave, Esquire
Nancy-Ju Merrill, Euquire
Pearlatein & Margrave
2100 Valley Bank Center
Phoenix, Arizona 85075
This case is before the Commissioner on certification as directed.
The petitidhet is seeking to classify the beneficiary as an intra-compally transferee (L-1) as defined in section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L), as amended.
The petition was denied by the District Director of this Service in
Phoenix. Appeal was taken to the Regional Commissioner, Western
Region. The Regional Commissioner upheld the decision of the District
Director and dismissed the appeal.
Aphrodite Investments is an investment holding company head
quartered in London, England. The company is owned by three
brothers, each of whom possesses approximately a one-third share of
the company. Aphrodite Investments has created two subsidiary companies located in Arizona. The purpose of these companies is to
purchase and develop real estate within Arizona for resale.
The District Director and Regional Commissioner hold that the
beneficiary cannot be classified as an intra-company transferee because he is "an entrepreneur, a speculative investor, and not an employee of an international company." Section 101(a)(15)(L) defines an
intro company transferee as:
An alien who immediately preceding the time of his application for admission into the
United States, has been employed continuously for one year by a firm or corporation or
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Interim Decision #2826
other legal entity or an affiliate or subsidiary thereof and who seeks to enter the
United States temporarily in order to continue to render his services to the.same
employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge ...
In the amicus brief submitted by the Association of Immigration
and Nationality Lawyers the principle of clear language enforcement
of a statute is properly mentioned. When the meaning of the language
of a statute is plain, -there is no room for a constructed interpretation.
Caminetti v. United States, 242 U.S. 470 (1917). When relying upon the
plain language we look first to relevant definitions within the same
title that are also used in the same or similar context. In the absence of
such definition the every day usage of the terms becomes important.
The Regional Commissioner attempted to establish the everyday
usage of a term he thought was relevant to the L-1 statute. How ever
"employee" is not used in section 101(a)(15)(L). The term used is
"employed." The present tense "employ" is defined in Webster's New
Collegiate Dictionary, in part, as "to provide with a job that pays
wages or a salary." If we were to adopt the definition of "employee" we
would exclude some of the very people that the statute intends to
benefit: executives. Webster's defines "employee" to be "one employed
by another usually for wages or salary and in a position below the
executive level."
In Matter of M—,
8 I&N Dec. 24 (BIA 1958; A.G. 1958), precedent was
established which held that the sole stockholder of a corporation was
able to be employed by that corporation as the corporation has a
separate legal entity from its owners or even its sole owner. While that
case concerned a visa petition for preference classification, I find its
conclusions are equally valid in other areas of concern where an
employer/employee relationship needs to be examined by the Service.
The Regional Commissioner found that the requisite relationship
exists between Aphrodite Investments and MN &S Corporation. The
petitioner's statements established that the beneficiary was employed
for the statutory period by Aphrodite Investments in a managerial
position for their subsidiary in the United States.
Therefore, the following order will be entered.
ORDER, The nonimmigrant visa petition be approved to accord
the beneficiary classification as an intra-company transferee.
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